by Laurie Essig
California’s enacting on Sunday of the “yes means yes” law is a victory for some campus feminist activists but an ill-conceived detour for feminism.
The new law guiding how colleges must handle accusations of sexual assault will require “an affirmative, conscious, and voluntary agreement to engage in sexual activity.” In other words, if a person is not actively agreeing to a sexual exchange and doing so throughout the exchange, it is not consensual. More important, the onus is no longer on the victim of sexual assault since she or he no longer has to have said “no.”
According to many young activists, that switch is a huge symbolic victory because it moves the law from victim blaming and gives more power to colleges and universities to pursue disciplinary processes. It also sets a clear standard for what constitutes sexual assault.
In an op-ed in The New York Times, the feminist sociologist Michael Kimmel and the feminist icon Gloria Steinem suggest that the new law might even make sex better because “‘yes’ is perhaps the most erotic word in the English language.”
So why is the law, the rhetoric, such a turnoff for me?
It’s not that I don’t support the activists’ efforts against sexual assault on campuses, including at the college where I teach. That work is truly changing the campus climate. And consent is absolutely a good and necessary thing. But “yes” has some decidedly unsexy cultural and legal complications because ostensible consent is not the only thing we must consider when trying to untangle the hairball of misogyny, gender inequality, alcohol, race, and class that make up the rape culture on campuses.
The obsession with consent has, in fact, seduced feminism into getting into bed with the state. And the thought that cops and disciplinary panels will make the world of intimate relations more just is an outlandish sexual fantasy.
This is not the first time some feminist activists have decided to cozy up to a decidedly unfeminist state to protect them from sexual abuse. The feminist legal scholar Catharine A. MacKinnon pointed out the limits of the legal system in her canonical Toward a Feminist Theory of the State but then worked with Ronald Reagan’s conservative attorney general Edwin Meese III to try to criminalize pornography.
Like the antiporn laws, “yes means yes” is a bad romance between feminism and the state for two reasons: pleasure and danger. The statute equates good sex with a legalistic definition of consent rather than with the pleasures had by the parties involved. It also expands notions of criminality at a time when the criminal-justice system is regularly committing horrific acts of race- and class-biased violence.
“Yes means yes” is a great notion with which to start a sex-ed class. Asking your partner if she or he want this or that, harder or softer, slower or faster is a fine way of producing more pleasure for all parties involved. But that doesn’t make the concept good law.
That’s because the legal standards we have inherited is based on liberal philosophical notions of “consent.” The consenter—usually imagined as a rugged individual, a propertied white male—agrees to enter into a contract with the state, an employer, or a lover. But feminism has long pointed to the fact that our lives and our desires are produced in conditions of extreme inequality—economic, sexual, racial, and educational. That inequality gets written into our relationships, including our sexual ones, too often as violence, but perhaps just as often as pleasure. Then, pleasure is a concept too often ignored in the legalistic framing of sexual exchange.
In other words, what happens when people get pleasure from not saying yes? Can they consent to nonconsent? A person who wishes to be ravished by her or his lover without any affirmative consent falls into the irrationality that often is sexual desire, an irrationality that has less to do with contract law and more to do with how power can be eroticized. Historically when people have engaged in sexual acts outside the paradigm of contractual relations, we have, as a society, marked them as irrational and incapable of consent.
As Gayle S. Rubin pointed out in her canonical 1984 essay “Thinking Sex,” we “should judge sexual acts by the way partners treat one another, the level of mutual consideration, the presence or absence of coercion, and the quantity and quality of the pleasures they provide. Whether sex acts are gay or straight, coupled or in groups, naked or in underwear, commercial or free, with or without video, should not be ethical concerns.”
Perhaps even more dangerous is expanding the definition of sexual culpability. The “yes means yes” campaign seems shockingly naïve about how law is actually enacted. Increasing the number of sexual acts that are forbidden might seem like a good idea if laws were universally imposed, but they are not. Certain populations will be marked as guilty, and that has everything to do with race and class and little to do with justice.
The law may target the incredibly entitled young men who are most likely to commit sexual assaults on campuses. Or it might target the men who seem as if they must be guilty, the ones who wear hoodies or whose parents cannot offer huge donations to their colleges. The law might target only those who have committed sexual assault, but after Trayvon Martin and Michael Brown and the Central Park Five, etc., it is difficult to imagine this happy ending.
As Michelle Alexander points out in The New Jim Crow, “the nature of the criminal-justice system has changed. It is no longer primarily concerned with the prevention and punishment of crime, but rather with the management and control of the dispossessed.”
“Yes means yes” expands the concept of criminality in a country where race and class hierarchies are kept in place through the carceral state. It is not like the Equal Rights Amendment or equal-pay laws or other feminist legislation. Those do not increase the state’s power to mark certain bodies as criminal. They just demand equal rights.
“Yes means yes” is another case of politics making strange bedfellows. Feminists work hard to show that the state is both racist and sexist, and yet some feminists imagine that very same state making the world a safer place for them. That’s like dating the wrong partner and wistfully hoping, against all evidence, that he or she will change.
Laurie Essig is an associate professor of sociology and gender studies at Middlebury College. She is the author of American Plastic: Boob Jobs, Credit Cards, and Our Quest for Perfection (Beacon Press, 2010).
Update on 9/30/14: This post was changed to clarify that the law will affect on-campus disciplinary actions.